PENNSYLVANIA CONSTITUTION: COMMENTARY AND COMMENTS*

10/13/04 In re Nader, ___ A.2d ___, 2004 WL 2339814 (Pa. Cmwlth. 2004)

In Commonwealth Court, several judges counted signatures on different portions of Ralph Nader's nomination papers. After the judges finished deciding the challenges to those signatures, the court issued this opinion, which included all the signature tallies and concluded that there were not enough valid signatures on Nader's nomination papers to allow his name on Pennsylvania's ballot.

The court once again referred to Article VII § 1 of the Pennsylvania Constitution cited every time it referred to the question of whether someone was a "qualified elector," which determined whether a signature was valid.

10/19/04 In re Nomination of Nader, ___ A.2d ___, 2004 WL 2341837 (Pa. 2004)

The Supreme Court of Pennsylvania issued a per curiam order affirming the order of the Commonwealth Court.

10/22/04 In re Nomination of Nader, ___ A.2d ___, 2004 WL 2368056 (Pa. 2004) (Saylor, J., dissenting statement)

[There was no majority opinion accompanying the per curiam order.] Justice Saylor dissented from the per curiam order. He cited Article VII § 1 to highlight the distinction between a qualified elector and a registered voter. The Commonwealth Court required the signatures on the nomination papers to be those of registered voters, when in fact they should have counted the signatures of anyone who was qualified under this constitutional provision.

According to Justice Saylor, the application of this standard would result in Nader's name being on Pennsylvania's ballot.

[The Commonwealth Court purported to recognize the difference between the two categories Justice Saylor described and apply the less stringent requirement. Moreover, it appears that the Commonwealth Court did not believe the result would have been different under either standard; the nomination papers would still come up short.]

An odd comment by Judge Colins, President Judge of the Commonwealth Court, in Rising Sun Entertainment, Inc. v. Pennsylvania Liquor Control Board, ___ A.2d ___, 2004 WL 2481264 (Pa. Cmwlth. 11/5/2004) raises a question about the relationship of Article I, section 7 of the Pennsylvania Constitution and the first amendment. In Rising Sun, a Commonwealth Court panel affirmed a fine for lewd entertainment at an establishment licensed to serve alcoholic beverages. The panel distinguished Pap's A.M. v. City of Erie, 812 A.2d 591 (Pa. 2002) on the ground that the issuance of a liquor license conditioned on the prohibition of lewd entertainment violates neither the first amendment nor Article I, section 7. Judge Colins' opinion, however, also notes that "the Twenty-first Amendment to the United States Constitution gives the states the absolute power over the conditions under which liquor is sold within their borders... ." While the amendment might be relevant to a federal, first amendment discussion, the Twenty-first Amendment presumably does not give to the states any authority prohibited by a state's own constitution.

Nixon v. Commonwealth, 839 A.2d 277 (Pa. 2003) seems to have clarified, at least in its footnotes, the status of substantive due process review in Pennsylvania and possibly equal protection as well. Justice Nigro's opinion, opposed on these points expressly by Justice Eakin's dissent, states that rights under Article I, section 1, of the Pennsylvania Constitution are to be analyzed as follows. Some rights, apparently those familiar in federal constitutional analysis, are fundamental and are to be reviewed under traditional strict scrutiny review. On the other hand, the remaining rights in section 1 are to be reviewed under a "rational basis" standard unique to Pennsylvania and expressly different from federal rational basis review. Government action in Pennsylvania is unconstitutional if it is "unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained." [Quoting Gambone v. Commonwealth, 101 A.2d 634, 637 (Pa. 1954).] Despite Justice Nigro's assurance that such government action is still to be presumed constitutional, the importance of the Gambone standard is spelled out in Nixon--it is expressly a "more restrictive rational basis test" than that utilized under federal law and the standard is the basis for decision in Nixon itself, in which the court strikes down legislation disqualifying certain persons with criminal records from employment in facilities catering to older adults. It is hard to imagine the United States Supreme Court reaching the same conclusion under federal due process. The Nixon case is all the more significant because the rights guaranteed pursuant to Article I, section 1, are so broad--"men...have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness."

***Any hope that the Pennsylvania Supreme Court would retain the clarity of review under due process that it achieved in Nixon was set back in Khan v. State Board of Auctioneer Examiners, 842 A.2d 936 (Pa. 2004). Khan upheld the constitutionality of the reciprocal discipline provision of the Auctioneer and Auction Licensing Act against a substantive due process challenge. The Court acknowledged the "real and substantial relationship" test authorized by the Nixon case. But, whereas the court in Nixon specifically held that this due process test is "a more restrictive rational basis test" than is used under federal due process review, the court in Khan stated that the "real and substantial relationship [standard] is a stronger test than the rational basis test employed in an equal protection analysis." The court cited Nixon for this proposition, which was not the holding or reasoning in Nixon. Thus the relationship of State and federal due process is once more muddled in Pennsylvania constitutional jurisprudence.

****The continuing authority of Nixon was illustrated in Warren County Human Services v. State Civil Service Commission, 844 A.2d 70, 2003 WL 23315459 (Pa. Cmwlth., March 8, 2004), in which a three-judge panel of the Commonwealth Court struck down a section of Child Protective Services Law prohibiting the hiring of applicants previously convicted of certain crimes. In Warren County, relief was granted to a county employee who had been removed from a position in the Department of Human Services because of a 20-year old conviction for aggravated assault.

As illustrated in Pennsylvania Turnpike Commission v. Commonwealth, ___ A.2d ___, 2004 WL 1698635 (Pa. Cmwlth July 30 2004), Equal Protection analysis under the Pennsylvania Constitution is no more predictable, nor comprehensible, than is due process review. In the Turnpike Commission case, a panel of Commonwealth Court struck down the First-Level Supervisor Collective Bargaining Act, which had required the Commission, but no other public employer, to engage in collective bargaining with a group of its employees. Judge McGinley found the Act to be a prohibited "special law" under Article III, section 32. The court acknowledged that section 32 includes "principles of equal protection under the law" citing the federal fourteenth amendment. The case illustrated a classic example of rational basis review since neither fundamental rights nor suspect classifications were involved. The court even propounded a test for such legislation that sounded like federal rational basis review-whether the legislation promotes a legitimate state interest and whether the classification is reasonably related to accomplishing that interest.

The problem with applying this standard to strike down this legislation, which the court did, is that the Act was plainly rational as that term is understood under federal equal protection. The court struck down the Act essentially because there was no reason to treat Turnpike Commission employees differently from employees of any other public employer. While that is obviously true, federal equal protection under rational basis review allows just this sort of step by step approach. See New Orleans v. Dukes, 427 U.S. 297, 303 (1976) ("Legislatures may implement their program step by step…in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.")

The Turnpike Commission case illustrates that, just as in due process review, there is a different application of equal protection principles under the Pennsylvania Constitution than under the federal constitution. While obviously the Pennsylvania courts are free to provide such greater protections, the failure of the courts to confront the differences between state and federal law directly and expressly leaves the extent of the divergence undetermined. All laws differentiate and almost all laws are either under or over inclusive to some extent. Nevertheless, not all laws subject to these objections are going to be held unconstitutional. One of the unanswered questions of Pennsylvania constitutional law is how far the courts are going to go in rational basis review. The Pennsylvania Supreme Court could go far in clarifying this question by allowing review in the Turnpike Commission case.

[The judgment of the Commonwealth Court was affirmed in Pennsylvania Turnpike Com'n v. Com,, 587 Pa. 347, 899 A.2d 1085 (2006).]

The decision by Judge Lisa Rau in the Philadelphia Court of Common Pleas that victims of police brutality may sue local municipalities under the Pennsylvania Constitution despite immunity provisions in the Political Subdivision Tort Claims Act (Jones v. City of Philadelphia) raises fundamental issues of government immunity in Pennsylvania for civil rights claims. Although Judge Rau regarded the issue as one of first impression, there have been a scattering of decisions in various courts over the years concerning civil causes of action under the Pennsylvania Constitution and principles of immunity. Judge Rau's opinion is certain to be reviewed and perhaps these matters will finally receive the judicial attention they deserve.

Commonwealth v. Rogers, 849 A.2d 1185 (Pa. 2004): Justice Castille, joined by Justices Eakin and Baer, concurs in the majority analysis concerning canine drug sniffs, but argues that the court should abandon prior caselaw in this area and "should return to a traditional totality of the circumstances approach". Chief Justice Cappy's majority opinion does not reject Justice Castille's suggestion but concludes that Rogers is not the proper case to undertake a full analysis of the canine search issue. It appears that there is majority on the court to relax Pennsylvania constitutional requirements for canine drug sniffs.

Commonwealth Court has recently struggled with the contours defining the constitutionally permitted tax exemption for "actual places of regularly stated religious worship". Article VIII, section 2(a)(i). In Reform Congregation Oheb Shalom v. Berks County Board of Assessment Appeals, 839 A.2d 1217 (Pa. Cmwlth. 2004), and Connellsville Street Church of Christ v. Fayette County Board of Assessment Appeals, 838 A.2d 848 (Pa. Cmwlth 2003), the court rejected tax exemption for religious staff housing. [See discussion of Reform Congregation Oheb Shalom below.] In Wesley United Methodist Church v. Dauphin County Board of Assessment Appeals, 844 A.2d 57 (Pa. Cmwlth. 2004), the court allowed tax exemption for church parking based on particular facts of the case, while warning that not all church parking lots are necessarily tax exempt. All this should be contrasted with the much broader tax exemption recognized pursuant to public charities in Article VIII, section 2(a)(v). Not only is housing for staff held exempt under section 2(a)(v), but so are dorms, despite the fact that for upperclass students, living on campus is often an exception and thus not clearly related to education.

***A panel of the Commonwealth Court recently dealt with the distinction between section 2(a)(i) and 2(a)(v) when a Church claimed tax exemption for a parish house as an institution of purely public charity rather than as an actual place of regularly stated religious worship. St. Aloysius R.C. Church v. Fayette County Board of Assessment Appeals, 849 A.2d 293 (Pa. Cmwlth. 2004). The difficulty for the Court was that the test of a charity exemption is becoming easier to meet while that of a place of worship is becoming more difficult to meet. Acknowledging that the Church might have a claim to exemption under the "more liberal" charitable provision, the Panel essentially refused to allow the Church to attempt to qualify as a charity, but had to rely on the more stringent place of worship provision.

What the Court failed to note, however, is that it is not the text of the Pennsylvania Constitution that has made one tax provision "more liberal" than another, but the courts' strained and willful interpretation. There is no reason why the worship provision does not include residences, but the charity provision does. Nor is there any ground for denying a Church the right to qualify for a charitable tax exemption. The idea that a secular charity would have a greater chance of qualifying for tax exempt status than a Church that is also a charity is a serious anti-religious discrimination.

The recent release of Nicholas Yarris from death row in Pennsylvania after more than 20 years imprisonment, based on DNA evidence conclusively demonstrating his innocence, raises the question whether any compensation is available to the wrongly convicted man. Because there was in his case no judicial finding of wrongful conduct by prosecutors or others, there would not seem to be a basis for a damage claim. Some states have compensation statutes for persons in Yarris' situation, but Pennsylvania does not appear to have such a program. One possibility would be an action in court directly upon Article I, section 1 of the Pennsylvania Constitution, which guarantees the right of "enjoying...liberty" and "protecting...reputation". There is Pennsylvania caselaw in the area of search and seizure suggesting that, while the federal constitution provides remedies only in order to deter official misconduct, the Pennsylvania Constitution provides remedies to vindicate rights. Therefore, arguably the Pennsylvania Constitution might provide a compensation remedy to Yarris even in the absence of official misconduct. Such an action by Yarris would have to overcome any immunity the State may enjoy from damage claims.

In concurring in Lehman v. Pa. State Police, ___ A.2d ___, 2003 WL 23095639 (Pa., December 30, 2003) Justice Nigro noted that although a federal prohibition on gun ownership in the case did not constitute unconstitutional ex post fact punishment, it was nevertheless "unfair that an individual who stole a case of beer" in the remote past when the act was a felony, could not purchase a firearm, whereas an individual who committed the same act today, when the act is classified as a misdemeanor, can purchase a firearm. Justice Nigro also wrote the majority opinion in Nixon v. Commonwealth, 2003 WL 23095675 (Pa., December 30, 2003), which struck down a provision of the Older Adults Protective Services Act that had prohibited certain persons with criminal records from employment in facilities catering to older adults. The provision was held by the majority to violate the right to work embodied in Article I, section 1 of the Pennsylvania State Constitution. Clearly, Justice Nigro's view of the rights of ex-convicts is influencing the court. Just as clearly, this aspect of Pennsylvania constitutional jurisprudence is of national significance, though it has not as yet been recognized.

Reform Congregation Oheb Shalom v. Berks County Board of Assessment, 839 A.2d 1217 (Pa.Cmwlth. 2004) expresses an oddity of Pennsylvania constitutional jurisprudence. The court holds that the constitutional tax exemption stated in Article 8, section 2 (a)(i)--permitting legislative exemption from taxation of "Actual places of regularly stated religious worship"--does not reach the property used as a maintenance employee's house half a block from the synagogue. The court acknowledged that a different result obtains for universities and other charitable uses that are exempt from taxation under Article 8, section 2(a)(v), which permits legislative exemption of institutions of purely public charity and "that portion of real property of such institutions which is actually and regularly used for the purposes of the institution." The Pennsylvania Supreme Court has previously justified such divergent treatment as deliberately and clearly drawn by the constitutional texts involved, but the differing interpretations are probably also based on an understanding of the constitutionally permissible limits of tax exemptions for religious institutions. Since recent United States Supreme Court interpretation of the Establishment Clause would appear to permit a very broad tax exemption for religious institutions, it may well be time for the premise of these distinctions to be rethought.

South Newton Township Electors v. South Newton Township Supervisor, ___ A.2d ___, 2003 WL 22964330 (Pa., December 17, 2003) raises issue of validity of legislation that predates adoption of 1874 Pennsylvania Constitution, an issue that does arise under the Federal Constitution.

On Wednesday, December 3, 2003, Tim McNulty reported that the Pittsburgh City Treasurer, Rich Fees, told City Council that certain tax breaks would cost the City millions of dollars in lost revenue next year. For one thing, unreimbursed business expenses must be an allowed deduction from local earned income taxes. Also, several particular industries have been made exempt from the local business privilege tax, including banks, utility companies, financial services companies and manufacturers. The question is why these tax breaks do not violate the tax uniformity principle as enunciated in Amidon v. Kane in 1971. Amidon invalidated the State Income Tax because it allowed for recognition of certain exemptions and deductions. Some of these current tax breaks would appear to be invalid under Amidon. So, where is the Pennsylvania Supreme Court?

In Southeastern Pennsylvania Transportation Authority (SEPTA) v. Board of Revision of Taxes, ___ A.2d ___, 2003 WL 22019307 (Pa., 2003), the court per Cappy, C.J., attempted to distinguish between the immunity of publicly held property from local taxation and the exemption from taxing such property granted in Article VIII, section 2, of the State constitution. In principle, the immunity should be broader since the exemption applied only to "that portion of public property which is actually and regularly used for public purposes". In Southeastern, however, the court held that property leased by SEPTA to private, commercial entities, was not immune from taxation. The court appeared to apply something akin to the "public purposes" test, thus confusing the categories of immunity and exemption.

In its August 14, 2003 issue, Pulp Magazine in Pittsburgh reported on efforts by voters to impeach Pittsburgh Mayor Tom Murphy pursuant to the Pittsburgh Home Rule Charter. The Charter contains a liberal provision for impeachment, requiring only 20 signatures to bring a quasi-judicial action in the Court of Common Pleas. The grounds for impeachment are also expansive, including incompetence and mismanagement.

The impeachment effort, however, is probably unconstitutional. In In re Petition to Recall Reese, 665 A.2d 1162 (Pa. 1995), the Pennsylvania Supreme Court affirmed dismissal of recall proceedings in Kingston, Pennsylvania, on the ground that removal of public officials is governed exclusively by Article VI, section 7 of the Pennsylvania constitution. While the Court's opinion did distinguish impeachment, which is not governed by section 7, the result will probably be the same. Impeachment is set forth in Article VI, sections 4-6, of the State constitution. Under the reasoning of Reese, these sections should be the exclusive impeachment provisions. Assuming that sections 4-6 are the exclusive impeachment procedures, impeachment of Mayor Murphy is very unlikely. Section 4 provides that the Pennsylvania House of Representatives has the sole power of impeachment. Any impeachment is then to be tried in the Pennsylvania Senate and a two-thirds vote is required for conviction.

The consequences of not properly raising a state constitutional issue were never more apparent than in Purple Orchid, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement, 813 A.2d 801 (Pa. 2003). Just twelve days after the Pennsylvania Supreme Court struck down a municipal ban on nude dancing under Article I, section 7--PAP's A.M. v. City of Erie, 812 A.2d 591 (Pa. 2002)--the Court upheld a liquor code ban on topless dancing under the first amendment in Purple Orchid. The court held that the state constitutional issue was waived because, although mentioned in appellant's brief, the issue was not substantially argued. Furthermore, the state constitutional issue was not raised in the petition for allowance of appeal.

In Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), Justice Castille, writing for a unanimous court on this point, cast doubt on whether the express waiver rule announced in Commonwealth v. Bussey, 404 A.2d 1309 (Pa. 1979) (express waiver of Miranda rights required) remains good law under the Pennsylvania Constitution. Although the State Constitutional issue was not properly raised, Justice Castille stated expressly that there was no state constitutional violation in Bomar despite the absence of an express waiver and noted that Bussey was only a plurality decision that has not consistently been followed.

Mishoe v. Erie Insurance Company, 824 A.2d 1153 (Pa. 2003) continues the court's very narrow interpretation of Article I, section 6's right to a civil jury trial. The methodology the court is using asks whether a particular cause of action existed at the time the Constitution was adopted. If a cause of action did not exist at that time, then there is no right to a jury trial no matter how much the cause of action appears to be legal in nature.

The Pennsylvania Supreme Court has often stated that Pennsylvania does not follow the federal rule of Article III case or controversy doctrine in defining standing. Observers may have assumed that Pennsylvania had its own constitutional rule of standing and justiciability. In In re Hickson, 821 A.2d 1238 (Pa., 2003), Chief Justice Cappy stated for an unanimous court that standing doctrine in Pennsylvania has no constitutional basis at all. Standing is merely a "useful tool" (Fn. 5). Of course, standing requirements do exist and the appellant in Hickson was held to lack standing to seek judicial review. Nevertheless, the proclamation of a purely prudential basis for standing is an important step. And, since most federal justiciability doctrine is also grounded in Article III, there may be no constitutional basis for ripeness, mootness or political question doctrine either.

In Commonwealth v. Morris, ___ A.2d ___, 2003 WL 2004249 (Pa., 2003), the Court continues to assert that it has inherent power to issue stays of execution in death penalty P.C.R.A. cases, but that in the case before it, no showing was made that invoked the power to go outside legislative limits on stays of execution.

In light of the current funding crises affecting mass transit in Pennsylvania, the interpretation of Article VIII, section 11 may become very significant. The section limits the use of gasoline taxes and automobile license and registration fees to "construction, reconstruction, maintenance and repair of and safety on public highways...and expenses incident thereto... ." Professor Ken Gormley of Duquesne University School of Law has argued that the narrow language of Section 11 does not necessarily preclude the use of gasoline tax and other revenues as a dedicated revenue source for mass transit, "so long as it is for the purposes set forth in Section 11". If the section does preclude such use, the only method to set aside a portion of gasoline tax revenue for mass transit would be a State constitutional amendment.

Commonwealth v. Elmobdy, 2003 L 1923782 (Pa. Super. 2002) is another case considering whether the person, in this case an employee of a bail bonding company, allegedly violating Article I, section 8, of the Pennsylvania Constitution, is a state actor. This application of the "state action" doctrine ignores caselaw questioning whether other sections of the Pennsylvania Constitution are limited by the federal state action doctrine.

The proposed State constitutional amendment submitted by Senate President Pro Tempore Robert Jubelirer to change the way vacancies in the office of Lieutenant Governor are filled is a surprising next step in the saga of the case of Lawless v. Jubelirer, 789 A.2d 820 (Pa. Cmwlth.), affirmed 811 A.2d 974 (Pa. 2002). Lawless dismissed the challenge to Jubelirer's retaining the office of President of the Senate when he was elevated to Lieutenant Governor. Jubelirer's amendment would reverse the precedent he himself set. It is not clear whether the proposed amendment really would repair all the damage to the separation-of-powers that the opinion created. The Commonwealth Court opinion in Jubelirer's favor, for example, seemed to allow general sharing of legislative and executive offices. The proposed amendment does not resolve that issue. Two further questions arise from these events. First, since Jubelirer apparently thought the sharing of the two offices was bad policy even when he held them both, why did he not resign the Senate Presidency? Second, did the Justices on the Pennsylvania Supreme Court know about Jubelirer's plan to introduce this amendment? Does such knowledge explain the otherwise inexplicable failure of the court to grant oral argument and write an opinion in affirming Lawless v. Jubelirer, which on its face presented the kind of fundamental constitutional question it is the court's role to consider?

In Commonwealth v. Robins, the Court held without a majority opinion, that the admission of inculpatory statements made by a non-testifying coconspirator violated defendant's Sixth Amendment right of confrontation. Robins is another case in which the court, having ruled in favor of a party on federal constitutional grounds, refuses to reach an analogous State constitutional claim. But the Sixth Amendment raised in Robins, like the First Amendment issue raised in PAP's A.M., was a close one. In Pap's A.M., the United States Supreme Court reversed the result, which led the Pennsylvania Supreme Court to reinstatement of the judgment on the State constitutional grounds. The same thing could happen in Robins The court's method invites unnecessary review by the United States Supreme Court, and denigrates the significance of the Pennsylvania Constitution. It would be far better for the court always to reach State constitutional claims, whatever the merits of federal constitutional claims. That approach seems to be implied by Justice Cappy's opinion in Commonwealth v. Edmunds.

National Association of Forensic Counselors v. State Board of Social Workers, Marriage and Family Therapists and Professional Counselors upheld the denial by the Board of a request by the Association to be recognized as national credentialing agency exempt from licensing exam. The case is a good review of Pennsylvania constitutional/administrative law. Commonwealth Court upheld the Board's decision against delegation, due process and equal protection challenges.

On January 28, 2003, the Pittsburgh Tribune Review reported that the Allegheny County District Attorney's Office was investigating the fitness of City Council member Sala Udin to hold office under Article II, section 7. The article raised the question whether a private citizen could bring suit if the District Attorney refused to do so. In In re One Hundred Qualified Electors, 683 A.2d 283 (Pa. 1996), the Pennsylvania Supreme Court, in an opinion by Justice Castille, stated that a party would be permitted to bring an alternative to a quo warranto claim–mandamus or an action in equity--where both the local District Attorney and the Attorney General refuse to file.

The consequences of failing to raise a state constitutional issue were dramatically demonstrated in Purple Orchid, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement, ___ A.2d ___, 2002 WL 31923662 (Pa., 2002). In Purple Orchid, counsel waived the state constitutional issue. The Pennsylvania Supreme Court upheld the provision of the Liquor Code banning nude dancing in liquor establishments. Given the result in Pap's A.M., the result might well have been different under Article I, section 7.

The decision of the State Supreme Court invalidating a local ban on nude erotic dancing is important on both methodological and doctrinal grounds. PAP'S A.M. v. City of Erie, 812 A.2d 591 (Pa. 2002). The case illustrates the wasteful tendency of the court to decide cases on federal constitutional grounds and then to ignore State constitutional claims. This led the US Supreme Court to take the case and reverse. On remand, the Pennsylvania Supreme Court finally reached the State law issue and again struck down the ordinance. Had the court followed the lead of Justice Castille and Chief Justice Zappala in the first place, and reached the State constitutional issue, the United States Supreme Court would not have taken the case because of the adequate and independent State ground doctrine. The court thus wasted judicial resources unnecessarily.

The court's actual holding striking down the nude dancing ordinance places Pennsylvania in the forefront of judicial protection of expression in the United States. The court held unanimously that Article I, section 7 provides greater protection for speech than does the first amendment and even Justice Saylor's dissent would not have upheld the ordinance, but would have remanded the case for an evidentiary hearing on the City's claim of remedial effects from the ordinance. The majority of the court, in an opinion by Justice Castille, not only rejected the intermediate level review test of United States v. O'Brien, 391 US 367 (1968), which it characterized as requiring that restrictions on speech be no more extensive than necessary to accomplish the government interest, but adopted instead a "strict scrutiny analysis" that asks whether there exists a less intrusive means to achieve the government's objective. The court also interpreted prior commercial speech caselaw as similarly rejecting federal intermediate scrutiny as the appropriate test under the Pennsylvania Constitution and as adopting the same less intrusive means test. See Insurance Adjustment Bureau v. Insurance Comm'r, 542 A.2d 1317 (Pa. 1988). This sort of strict scrutiny review is generally fatal to government regulation. This suggests that government regulation of advertising and expressive conduct in Pennsylvania is likely to be found unconstitutional for the foreseeable future.

The Per Curiam affirmance by the Pennsylvania Supreme Court of the Court of Common Pleas order in Commonwealth ex rel. Baldwin v. Fisher on October 25, 2002, seems to establish that all theft offenses are "infamous crimes" for purposes of disqualification from holding office under Article II, section 7, of the Pennsylvania Constitution. If that is so, the case also establishes that Jake Wheatley, who was elected to the Pennsylvania House of Representatives in November, is ineligible to serve (see below). In the Fisher case, a jury commissioner in Berks County was convicted of theft by unlawful taking and was subsequently removed from office pursuant to a quo warranto action filed by the District Attorney. The only ambiguity in the case is the possibility that Fisher was convicted of a felony and so might have been removed on that basis. Since the court affirmed the removal without remand for clarification, however, it would seem that either felony or theft would suffice for removal. Wheatley was convicted of larceny in Michigan and there is some question whether his conviction would be considered a felony in Pennsylvania. Under Fisher, that does not seem to matter. The political question is which office holder, the Allegheny County District Attorney or the Pennsylvania Attorney General, will undertake the politically unpalatable job of bringing the quo warranto action.

***Note that on Wednesday, January 8, 2003, the Pittsburgh Post Gazette reported that Representative Wheatley has obtained an expungement of his conviction in Michigan.

The decision of an equally divided Pennsylvania Supreme Court, in effect upholding the decision of the Commonwealth Court striking down the Lobbying Disclosure Act as an interference with the Supreme Court's authority to regulate the practice of law, Gmerek v. State Ethics Commission, 807 A.2d 812, (Pa. 2002), again raises the issue of Article V, section 10, and the issue of generally applicable laws that also bind attorneys. The Justices could have saved the statute by adopting the statute's prescriptions as the ethics rules for lawyer/lobbyists in certain circumstances, but did not do so.

In a civil rights case by adoptive parents against Cumberland County Children and Youth Services, Robbins ex rel. Ribbons v. Cumberland County Children and Youth Services, ___ A.2d ___, 2002 WL 1584897 (Pa. Cmwlth., July 18, 2002) (No. 405 C.D. 1999), Commonwealth Court stated that the availability of a direct cause of action for damages under the State Constitution has never been decided and that constitutional causes of action might in any event be barred by statutory governmental immunity. The case points up the failure of the Pennsylvania courts to address justiciability issues under the Pennsylvania Constitution in any sort of consistent manner.

In Bold Corporation v. County of Lancaster, 801 A.2d 507 (Pa. 2002), the Pennsylvania Supreme Court reversed Commonwealth Court and held that the imposition of a hotel room rental tax to build a convention center in Lancaster County is constitutional. Despite the unanimous reversal, cases of this kind are likely to continue to be filed until the Court overrules Allegheny County v. Monzo, 500 A.2d 1096 (Pa. 1985). Monzo, which disallowed the application of a similar tax for a convention center to a Monroeville hotel, seemed to establish a constitutional test that a tax is unconstitutional if its burdens are palpably disproportionate to its benefits. This approach to taxation places the Pennsylvania courts in the position of second-guessing the wisdom of taxes. It is unlikely the Pennsylvania Supreme Court will ever again overturn a tax based on the authority of Monzo, which more and more looks like a lark. The Court would be well advised to overrule it.

The case of Commonwealth v. Perry, 798 A.2d 697 (Pa. 2002) shows division on the court over the reach of Article I, section 8 in automobile search cases. There was no majority opinion in the case. Justice Cappy's opinion announcing the judgment of the court and Justice Nigro's dissent, joined by Justice Zappala, argue that Pennsylvania law is settled that a warrantless vehicle search requires both probable cause and exigent circumstances. Such an approach would differ from federal law, which requires only probable cause. Justice Castille's concurring opinion, joined by Justice Newman, argues that the issue has not yet been decided and remains open. Justice Saylor's concurring opinion suggests that Pennsylvania law has required exigent circumstances, though the matter is not as settled as some of the opinions state. Justice Flaherty did not participate in the decision in the case.

The May 21, 2002, primary victory by Jake Wheatley for a House district seat from Pittsburgh raises the issue of the interpretation of Article II, section 7, which bars anyone convicted of an "infamous crime" from holding office in Pennsylvania. Wheatley's 11 year old conviction for assault and larceny represented a felony in Michigan, but might not be so considered under Pennsylvania law. The other issue in Wheatley's situation is whether any theft offense, even a misdemeanor, is considered an infamous crime because it involves an element of dishonesty. It is not altogether clear that the matter will even reach the courts. The Attorney General has raised such issues in the past, but in light of his running for Governor, he may prefer not to raise the issue. The House might refuse to seat Wheatley, but the district involved is heavily Democratic and so barring him would not gain any long-term partisan advantage for the Republican majority. Bolus v. Fisher, 785 A.2d 174 (Pa. Cmwlth. 2001), establishes that the case is ripe for review even prior to the November election, so the Attorney General may be forced to address the issue on the campaign trail.

The methodology of State constitutional interpretation utilized in In Interests of R.H., 791 A.2d 331 (Pa. 2002), conflicts with earlier caselaw. In R.H., Justice Nigro's plurality opinion finds a federal constitutional violation and then finds "no need" to reach the same issue under the Pennsylvania Constitution, citing Gondelman v. Commonwealth, 554 A.2d 896, 898 (Pa. 1989). But in other cases, for example, Commonwealth v. Franciscus, 710 A.2d 1112 (Pa. 1998), the court has decided a federal constitutional issue and then has gone on to determine the corresponding State constitutional issue.

In Lawless v. Jubelirer, 2001 WL 1658112 (Pa. Cmwlth., January 4, 2002), the Commonwealth Court of Pennsylvania sustained a demurrer to request for declaratory judgment, essentially holding that Robert Jubelirer may serve simultaneously as Lieutenant Governor and State Senator/President pro tempore of the Pennsylvania Senate. Presumably the Pennsylvania Supreme Court will accept the case for review and resolve the issue.

Aside from ignoring precedent on incompatible offices, see O'Pake below, the strangest thing about the Commonwealth Court opinion in Jubelirer is the failure of the court to treat the prohibition in Article II, section 6 of anyone holding an "office" from being a member of either House. The opinion distinguishes Article IV, section 6, which provides that no one holding any office may serve as, inter alia, Lieutenant Governor, on the ground that State Senator is not an "office". The court also distinguishes the first part of Article II, section 6, which says that State Senators and Representatives may not be "appointed" to any office. Jubelirer was not appointed Lieutenant Governor. But the second sentence of section 6 is broader. No one holding any office "shall be a member of either House... ." Jubelirer now holds an office--Lieutenant Governor--and is also a member of one House. Nor does the court explain how, if Jubelirer is not barred from serving in two offices at the same time, anyone else would be barred. Under the court's reasoning, anyone could run for Governor while a State Senator and then occupy both posts.

[The following commentary was written before the Commonwealth Court decided the Jubelirer case.] The developing issue involving whether Senator Robert Jubelirer's office becomes vacant when he becomes Lieutenant Governor is not easily resolved. Jubelirer assumes the office of Lieutenant Governor under Article IV, section 14, which provides that the President pro tempore of the Senate becomes Lieutenant Governor when that officer becomes Governor, as Mark Schweiker did when Tom Ridge resigned as Pennsylvania Governor. There is no question that, as a general matter, the Office of Senator and the Office of Lieutenant Governor are incompatible offices under both Article IV, section 6 and Article II, section 6. Indeed, the Commonwealth Court specifically held in In re O'Pake, 422 A.2d 209 (Pa. Cmwlth. 1980), that the offices of Attorney General and State Senator are incompatible--that is, an individual could not hold both offices at the same time. The problem arises with Jubelirer because Article IV, section 14, provides expressly that the Senate seat of the President pro tempore of the Senate "shall become vacant" when the President becomes Governor, but does not so provide when the President becomes Lieutenant Governor.

There are several possible answers to this question. It may be that the Constitution means for an individual to hold both posts and to exercise the powers of both offices. This seem unlikely, since the President pro tempore is to serve as Lieutenant Governor "for the remainder of the term [of the Lieutenant Governor]", which would allow Jubelirer to occupy both posts for an extended time. In all other such cases, the Constitution provides for special elections. There also would be insurmountable issues concerning the role of the Lieutenant Governor as "President of the Senate" pursuant to Article IV, section 4.

Another possible interpretation is that Article IV, section 14, is simply badly drafted or was based solely upon inapplicable language from the Constitution of 1874. In that case, a court could simply declare Jubelirer's seat vacant, despite the ambiguity in the constitutional language.

A third alternative would be to distinguish between holding two incompatible offices, which is prohibited, and declaring Jubelirer's Senate seat "vacant", which only happens if the President pro tempore becomes Governor. Under this interpretation, Jubelirer's seat is not vacant while he serves as Lieutenant Governor, but he may not serve as President pro tempore nor, for that matter, as a Senator. The State Senate seat in effect remains open and a new President pro tempore of the Senate must be selected. If the State Senate term ends while Jubelirer is still serving as Lieutenant Governor, the election for the State Senate seat would be conducted in the normal fashion. (To get somewhat ahead, under the O'Pake case, Jubelirer, still sitting as Lieutenant Governor, could run for that seat, but could not occupy it without resigning as Lieutenant Governor).

Commonwealth v. Crawford, decided December 27, 2001, by Superior Court, shows how the media must go about contesting a gag order. The order in that case, one in which the prosecution was seeking the death penalty for a juvenile, barred the attorneys from certain extra-judicial statements. The media sought to intervene, which was denied, and then challenged the gag order. Superior Court held that the media lacked standing directly to challenge the order, which did not bind the media in any way. The denial of intervention could not be challenged because the failure to appeal waived that issue. Obviously, in the future, the media must vigorously press intervention in such cases and appeal denials.

In deciding that under Article I, section 8, there is no expectation of privacy in telephone conversations with informants, the court in Commonwealth v. Rekasie, 778 A.2d 624 (Pa. 2001), followed in a general way the dictates of federal constitutional law. The decision did not utilize the format of Commonwealth v. Edmunds to frame the State constitutional issue. Nevertheless, Rekasie probably does not portend a change in the court's approach to Article I, section 8. The decision was written as essentially a common law question of whether Commonwealth v. Brion would be extended to the context of telephone conversations from one's home. Rekasie might suggest, however, that the formality of the Edmunds four factor test is not felt to be necessary by the Justices when there is already Pennsylvania case law in an area. That is the position Justice Larsen took years ago in Blum v. Merrell Dow Pharmaceuticals, 626 A.2d 537, 549 (Pa. 1993) (Larsen, J., concurring).

Pennsylvania Prison Society v. Commonwealth, 2001 WL 835891 (Pa. 2001) in upholding the amendment to the composition and procedure of the Board of Pardons, the court was so divided that there was no majority opinion. The division in the case between Justice Zappala's plurality opinion and Justice Saylor's concurrence--joined by Justices Castille and Newman--was apparently over Justice Zappala's rejection of a "single subject" test for deciding whether separate votes are needed for proposed changes in the Constitution. As it was, a majority of the Justices must have applied a less restrictive test for defining separate changes than did Commonwealth Court, although no "test" was actually set forth. Commonwealth Court found five separate changes, while a majority of the Justices found no more than two. This may make it easier to amend the Pennsylvania Constitution in the future. (Justice Zappala upheld the amendment despite two subjects because one subject effected no change in the legal authority already present in the State Senate.)

Commonwealth v. Means, 2001 Wl 708446 (Pa. 2001) upheld the constitutionality of using victim impact statements in capital cases with suitable limiting instruction. The plurality opinion by Justice Cappy performed a full Edmunds analysis in interpreting Article I, section 13.

Commonwealth v. Shaw, 770 A.2d 295 (Pa. 2001) illustrates a recent trend in State Supreme Court decisions to ignore interpretive method, for example, the factors outlined in Edmunds, and simply decide constitutional issues directly under the State Constitution. For another example, see Commonwealth v. Yastrop, 769 A.2d 318 (Pa. 2001); cf., Blum v. Merrell Dow, 626 A.2d 537, 549 (Pa. 1993) (Larsen, J., concurring): Edmunds methodology inapplicable to interpretation of plain meaning of Pennsylvania Constitution.)

Commonwealth v. Yastrop, 769 A.2d 318 (Pa. 2001) does not entirely reflect a majority sentiment upholding DUI roadblocks, even with objective standards. Justices Cappy and Saylor, and perhaps Castille, evidence unhappiness with the outcome and Chief Justice Flaherty, and Justices Zappala and Nigro dissent.

If no argument for broader interpretation of the Pennsylvania Constitution is made, footnote 8 of Commonwealth v. McCafferty, 758 A.2d 1155, 1159 (Pa. 2000), suggests that the parallel federal law will be applied.

The Pennsylvania Supreme Court continues to refer to different provisions of the Pennsylvania Constitution as equivalent to federal equal protection--Article I, section 26, in Commonwealth v. Albert, 758 A.2d 1149 (Pa. 2000)--and continues to state that State analysis uses the same standards as federal equal protection law, although the latter claim does not appear to be accurate.

The discussion by the Pennsylvania Supreme Court of special legislation prohibited by Article III, section 32, in Harrisburg School District v. Hickok, 762 A.2d 398 (Pa.Cmwlth. 2000), is a good summary and starting point, particularly on the difference between classes of one and rational relationship analysis. Commonwealth Court seemed to hold that separate legislation within a class of municipalities will always be unconstitutional as not general legislation in Wings Field Preservation Associates v. Pennsylvania Department of Transportation. The expansive quality of this holding is reminiscent of Hoffman v. Township of Whitehall (Pa. 1996), which struck down a statutory preference for veterans in public employment promotion as a special law violative of Article III, section 32. The Pennsylvania courts seem unaware that these holdings apply section 32 well beyond any analogous application of federal equal protection. In Wings Field, Judge Kelley also held that the special authorization for Montgomery County also violates federal and State equal protection under the rational basis test. This holding is certainly questionable since Montgomery County is larger than the other two second class counties, which presumably would satisfy rationality in distinguishing its powers. The court may have been influenced by a concern for federal supremacy and preemption, though there was no holding on that point.

A question of procedure arose in Commonwealth v. Polo, 759 A.2d 372 (Pa. 2000), in which the majority held that the stop of a bus constituted an unconstitutional investigative stop. The defendant in Superior Court raised both State and federal constitutional arguments. The Superior Court suppressed the evidence based on the fourth amendment and did not reach the State Constitutional issue. The Commonwealth sought review in the Pennsylvania Supreme Court. The court affirmed based on the State Constitution, but Justice Newman felt that the defendant had waived the State Constitutional issue both by not setting forth the issue in a cross appeal or counter statement of the case and by not setting forth an Edmunds-type argument in either court.

In Hessley v. Campbell, 751 A.2d 1211 (Pa. Cmwlth. 2000), the en banc Commonwealth Court stated that "in these days, when we can save our forests by creating electronic rather than paper lists, there is a duty to do so..."-citing Article I, section 27. The statement was in support of the court's holding that the County was required to distribute a street list to a political entity on a computer diskette at no charge. It is not clear whether Judge Friedman was truly serious in the use of this language, but this certainly is an expansive interpretation and use of section 27.

The Pennsylvania Supreme Court is closely divided over the proper treatment of anonymous tips in investigatory stop cases. In two cases, Commonwealth v. Goodwin, 750 A.2d 807 (Pa. 2000) and Commonwealth v. Wimbush, 750 A.2d 795 (Pa. 2000) decided April 17, 2000, the court suppressed evidence, but did not clearly indicate whether the decisions were predicated on state constitutional standards or federal constitutional analysis. In Commonwealth v. Wimbush, 750 A.2d 807 (Pa. 2000) and Commonwealth v. Goodwin, (Pa. 2000), the court wrestled with the federal and State constitutional standards for investigatory stops based on uncorroborated anonymous tips. In both cases, the majority held that the stops were not justified, but there was disagreement over the ground of the decision. In Wimbush, in footnote 2, Justice Nigro stated that Pennsylvania law follows "Fourth Amendment jurisprudence in stop and frisk cases." The opinion then distinguished the case from that of Alabama v. White, 496 US 325 (1990). Justice Flaherty, however, who joined the majority as the necessary fourth vote, seemed to apply Pennsylvania law only, implying a stricter test for stops based on anonymous tips under Article I., section 8. In dissent, Justice Zappala stated expressly that the federal and state standards differ and that the search in this case was valid only under the Fourth Amendment. In a separate dissent, Justices Castille and Newman agreed with the majority opinion that the federal and state standards were the same, but would have held the search to be valid under the federal standards.

In Goodwin, the same doctrinal split was evident. The plurality of Justices Nigro and Cappy wrote that Pennsylvania followed the federal standard in stop and frisk cases and that the search was invalid under the Fourth Amendment standard. In concurrence, Justice Zappala, joined by Justice Flaherty, concluded that the anonymous tip in Goodwin justified the stop pursuant to Alabama v. White, supra, but that Pennsylvania follows a stricter standard than does the Fourth Amendment. In dissent, Justice Castille, joined by Justice Newman, would have held that Alabama v. White controls the case and would have upheld the search.

Thus, although a majority of the court was of the view that federal law controlled the case and a different majority was of the view that the federal standard was satisfied, the search in Goodwin was reversed.

Although at the moment, only Chief Justice Flaherty and Justice Zappala are prepared to hold that Pennsylvania rejects the federal standard in anonymous tip stop cases, counsel would be prudent to argue in the alternative in such cases. Justices Nigro, Cappy and Saylor do not seem willing to follow the United States Supreme Court very far in permitting anonymous tips to justify searches. Thus, they may yet hold that there is a separate state standard in such cases.

In Commonwealth v. Gaffney, 733 A.2d 616 (Pa. 1999) (Upholding registration requirements of Pennsylvania's Megan's Law), the court, per Justice Zappala, contributed to the continuing confusion concerning when the Pennsylvania Constitution will be held to provide greater protections for individual rights than does the federal constitution. The court cited approvingly the Superior Court's reference to both Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) and Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985) as the proper standard to employ in making that decision. But these two cases provide vastly different standards for analysis. Specifically, Gray requires a "compelling reason" for providing greater rights, whereas, Edmunds does not grant federal standards any such presumption. Nor is the court's application of Edmunds free from ambiguity--in Commonwealth v. Cleckley, 738 A.2d 427 (Pa. 1999), Justice Cappy seemed to require "policy issues unique to Pennsylvania" id., at 438, before that prong of Edmunds analysis could count toward an outcome different from that under federal constitutional analysis.

In Commonwealth v. Ortiz, 738 A.2d 403 (Pa. 1999), the Pennsylvania Supreme Court unanimously reinstated the charge of carrying an unlicensed firearm against a defendant who had carried a firearm in the backyard of an apartment rowhouse he shared with residents of the other two apartments. The issue in the appeal had been whether such a common space qualifies under the "place of abode" exception under section 6106(a) to the requirement of a license. What is noteworthy about the case is the continuing tendency of the Justices to refrain from seeing constitutional dimensions to gun control cases, despite the breadth of Article I, sections 1 and 21. In this regard, Commonwealth Court allowed revocation of a gun permit under the police power standard in Tsokas v. Board of Lic. And Inspect. Rev., (Pa. Cmwlth. 2001), which is a very low standard for regulation of a constitutional right.

By expressly reserving the question whether Article I section 9 might expand procedural due process, at least in criminal cases, beyond "certain 'minimum' [federal] standards", Commonwealth v. Williams, 733 A.2d 593, 608 n. 17 (Pa. 1999), the Pennsylvania Supreme Court may be signaling a readiness to hold that it does. Such an expansion of due process under the State Constitution would mark a change in current interpretation. For a recent restatement of one general rule that Article I, section 9 does not provide greater protection than does federal due process, see Commonwealth v. Scher, 732 A.2d 1278, 1280, n. 1 (Pa. Super. 1999).

The Pennsylvania courts are currently linking tax uniformity principles under Article VIII to the standards of federal equal protection. See e.g., Conley Motor Inns, Inc. v. Township of Penn, 728 A.2d 1012, 1014 (Pa. Cmwlth. 1999) (applying the "rational basis standard" for reviewing constitutionality of tax exemptions) and Parsowith v. Commonwealth, 723 A.2d 659, 663 (Pa. 1999) (same). (Although this tendency is not new, it is in tension with an older approach of not applying federal standards to State uniformity issues. See Amidon v. Kane, 279 A.2d 53 (1971) (Pennsylvania income tax unconstitutional in part because of borrowing federal tax exemptions and deductions).

The decision by the State Supreme Court in Denbow v. Borough of Leetsdale, 729 A.2d 1113 (Pa. 1999), that Article III, section 26's "principles" "apply with equal force" to a municipality may mean that other prohibitions and prescriptions of Article III bind local government as well. That would certainly be a new application of Article III.

Commonwealth Court's decision in Shaulis v. Pennsylvania State Ethics Commission, 739 A.2d 1091 (Pa. Cmwlth. 1999), limiting the authority of the Commission to regulate former government employees, takes a narrow view of the reach of P.J.S. v. Pennsylvania State Ethics Commission, 723 A.2d 174 (Pa. 1999). In P.J.S., the court suggested that, as regards regulation of attorneys, conduct that would be prohibited if performed by anyone can be regulated by agencies of government other than the State Supreme Court. In Shaulis, Commonwealth Court held that the direct practice of law cannot be regulated even if the regulation also limits the activities of non-attorneys.

In Shaw v. Pennsylvania Board of Probation and Parole, ___ A.2d ___ (Pa. Cmwlth. 1999), a panel of Commonwealth Court confronted the problem of a lower court trying to follow the lead of a State Supreme Court on an issue of state constitutional law. The Pennsylvania Supreme Court had held in Scott v. Board of Probation and Parole, 698 A.2d 32 (Pa. 1997) that a warrantless search of a parolee's residence without probable cause is a violation of the fourth amendment. But that holding had been reversed by the United States Supreme Court, 524 US 357 (1998). Although the panel in Shaw accepted the argument by the Petitioner that the court in Scott would also have held that such a search violates Article I, section 8 of the Pennsylvania Constitution, the court refused to apply that result. The reason for not reimposing the rule of Scott was that the Pennsylvania Supreme Court has also held that Article I, section 8 does not generally afford greater rights to parolees than they enjoy under the fourth amendment. Therefore, once the result in Scott was reversed by the United States Supreme Court, that reversal constituted a reversal of state constitutional law as well.

The decision by the State Superior Court in Commonwealth v. Kilgore, 719 A.2d 754 (Pa. Super. 1998)--a P.C.R.A. case--that counsel had been ineffective for failing to raise a search issue under the State Constitution may signal a new era in Pennsylvania constitutional jurisprudence. Although technically limited to a particular search issue, the court's reasoning suggests that failure to raise a potentially determinative issue under the State Constitution, when counsel did raise the same or similar issue under the federal constitution, may constitute per se ineffective assistance of counsel.

The decision by the Pennsylvania Supreme Court to dismiss challenges to the Pennsylvania system of public education funding on the ground that such challenges represent nonjusticiable political questions, draws attention to the court funding case, Allegheny County v. Commonwealth, 534 A.2d 760 (Pa. 1987) as the lone exception in which the Court has been willing to consider the constitutionality of a legislative determination of a large scale funding issue. The outcome in the funding case, Marrero v. Commonwealth, __ A.2d __ (Pa., October 1, 1999) may render the legislature even less disposed to comply with the Court's order in regard to court funding.

*Unless otherwise noted, all interpretations are written by Bruce Ledewitz, Professor of Law at Duquesne University School of Law and reflect his views.